Supreme Court New South Wales Medium Neutral Citation: R v Walker (No 2) [2017] NSWSC 1008 Hearing dates: 27 July 2017 Date of orders: 31 July 2017 Decision date: 31 July 2017 Jurisdiction: Common Law Before: Schmidt J Decision: Evidence admissible. Catchwords: EVIDENCE – tendency evidence – murder – death of domestic partner of accused – certain tendency evidence admissible – other evidence admissible as relationship evidence Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: BC v R [2015] NSWCCA 327 Hughes v The Queen [2017] HCA 20 IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 R v Frawley (1993) 69 A Crim R 208 R v Walker [2017] NSWSC 997 R v SK; SK v R [2011] NSWCCA 292 Wilson v The Queen (1970) 123 CLR 334 Category: Procedural and other rulings Parties: Regina Jamie Christopher Walker Representation: Counsel: Mr C Maxwell QC with Ms J M Smith (Crown) Ms B J Rigg SC (Accused) Solicitors: Solicitor for Public Prosecutions (Crown) Jamison Lawyers (Accused) File Number(s): 2015/124540 Publication restriction: Nil Judgment 1. As well as the hearsay notice which I dealt with in R v Walker [2017] NSWSC 997, the Crown has served a tendency notice under s 97 of the Evidence Act 1995 (NSW). The tendency which is sought to be proved is Mr Walker's tendency to act violently toward Ms Locke, with whom he was in an intimate domestic relationship. The circumstances relied on are specified to be: "● The violence occurred in the home of Jamie Walker and the deceased. ● The violence included kicking, punching and pushing the deceased. ● The violence included throwing objects at the deceased. ● The violence including pushing the deceased down the stairs." 1. There is no issue that Mr Walker and Ms Locke were in an intimate domestic relationship. Expert evidence will be called about the injuries which Ms Locke suffered and their potential causes. 2. There will also be evidence that from the time that Mr Walker made the 000 call on 27 April 2015, he gave a number of differing accounts about how Ms Locke came to be injured as she was and denied to police that they had been arguing, before Ms Locke was injured. 3. Expert evidence about the possible causes of Ms Locke's injuries, will not be consistent with Mr Walker's accounts of how Ms Locke came to be injured and neighbours' evidence will also contradict aspects of Mr Walker's accounts. There will be evidence, for example, that Mr Walker and Ms Locke had been heard arguing and he had been observed pulling her to the ground. 4. There is no objection to most of the tendency evidence which the Crown proposes to rely on. The evidence to which objection is taken is that which Ms Large and Elisha Locke would give. There was no suggestion that their evidence would not be relevant to what is in issue, that is, that it could not "rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue" in these proceedings, if accepted: Evidence Act s 55(1). Mr Walker's case was rather that the probative value of the disputed evidence was low and the prejudice of its receipt high and so it was not admissible. 5. Section 97 provides: "97 The tendency rule (1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. (2) Subsection (1) (a) does not apply if: (a) the evidence is adduced in accordance with any directions made by the court under section 100, or (b) the evidence is adduced to explain or contradict tendency evidence adduced by another party." 1. As discussed in IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [46], the significance of the probative value of tendency evidence under s 97(1)(b), depends on the nature of the facts in issue to which the evidence is relevant and the significance or importance which that evidence may have in establishing those facts. "So understood, the evidence must be influential in the context of fact-finding": IMM at [46]. In resolving what lies in issue, an assumption must be made that it will be accepted by the jury: at [52]. 2. Section 101 also arises for consideration. It provides: "101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution (1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98. (2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant. (3) This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant. (4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant." 1. The Crown seeks to rely on the evidence of Elisha Locke and Ms Large to help prove, to the requisite standard, that Mr Walker was responsible for the injuries Ms Locke suffered on 27 April 2015. In issue is whether the evidence they would give has significant probative value and if it does, whether its probative value substantially outweighs any prejudicial effect it may have on Mr Walker. 2. In resolving what is in issue, other evidence, including the tendency evidence to which objection was not pressed, must be taken into account. As discussed in Hughes v The Queen [2017] HCA 20 at [61], evidence relied on to support a tendency does not need to be considered "by itself". Other evidence to be adduced must thus be taken into account, in determining the probative value of the disputed evidence. Even if particular tendency evidence is weak by itself, it must be assessed together with the other evidence. 3. In this case that includes, for example, the evidence which neighbours such as Mr Smith, would give. Mr Smith had been a neighbour for about six or seven years when Ms Locke died. He will give relationship evidence to which no objection was taken. The tendency evidence he would give, which is also not objected to, concerns: "10. Page 20 - observed Walker grab Locke, push Locke and punch on at least 6 occasions. 11. 21 - Locke came to his front door. Observed red mark on her face. Locke said "He punched me and pushed me down the stairs." 22 - about 8 weeks ago, he heard screaming. Locke told him to call the police. He saw through the screen door Walker punch Locke in the face and body about 10 times. She then had a fit. During the assault she opened the door. Walker said "You want to call the police you are nothing but a fuckin' dog"". 1. It is not necessary to outline all of the tendency evidence other witnesses would give about Mr Walker's violence towards Ms Locke. It should be noted, however, that it is only Elisha Locke who would give evidence of Mr Walker having acted violently towards Ms Locke prior to 2009, apart from Mr Walker's mother, who would give evidence of having observed pushing. Elisha Locke Does her evidence have significant probative value? 1. The tendency evidence Elisha Locke would give is: "1.6 - Walker became abusive around her first year of high school (1997). Threw things. 7 - saw Walker punch Locke 8 to 10 times around head (1998). No marks but headache. Also saw him push and shove Locke. 8 - Arguments increased by 2003 & heard Walker say degrading, nasty things to Locke during a visit." 1. Mr Walker and Ms Locke had a relationship for some 23 years. It appears that the only witness who lived with them is Elisha Locke, up until she was aged 14. 2. The Crown's case was that the tendency evidence it proposes to call is relevant to the question of whether any of the injuries which Ms Locke suffered were caused by unlawful act, rather than accidentally. A tendency to act violently towards Ms Locke makes it more likely that the injuries she suffered were caused by Mr Walker's deliberate unlawful act and that a longstanding tendency to act violently towards Ms Locke, makes it more likely that Ms Locke's injuries were caused by a deliberate unlawful act than by accident. 3. In relation to Elisha Locke's evidence, it was submitted that it did not establish that at the time that she observed him acting violently towards Ms Locke, that Mr Walker had a tendency to act violently towards her and even if it did, such a tendency, 16 to 18 years beforehand, when he was only aged in his early 30's, did not strongly support proof of his conduct in April 2017, at age 47. Such remoteness in time affected the extent to which the evidence supports proof of what is in issue: R v Beserick (19930 30 NSWLR 521-2, 527B-C. 4. It was also argued that in 2000, when Mr Walker punched Ms Locke eight to ten times, but left her uninjured, told against him having any intent to cause grievous bodily harm in April 2017. In the result, neither the s 97 nor s 101 tests were satisfied in her case. 5. I do not consider that what was decided in Beserick in relation to evidence of 'guilty passion' for a victim which persisted over the course of years, is of much assistance in resolving what here arises for determination under ss 97 and 101 of the Evidence Act, in relation to the evidence Elisha Locke would give about the violence which she actually observed, while living with Ms Locke and Mr Walker. 6. As discussed in IMM at [46], the significance of the probative value of tendency evidence depends on the nature of the facts in issue to which it is relevant and the importance which that evidence may have in establishing those facts. As discussed in Hughes at [64], whether tendency evidence has significant probative value depends on the extent to which it makes the elements of the offence charged more likely. That requires a comparison between the tendency and the facts in issue. So understood, the evidence must be influential in the context of fact-finding. 7. In this case what falls to the Crown to prove is first, that Mr Walker caused the injuries which resulted in Ms Locke's death, excluding as a reasonable possibility that they occurred accidentally. Secondly, that Mr Walker intended to inflict really serious injury upon her. 8. If the tendency which the Crown advances is expressed at a high level of generality, while the evidence may provide significant support for that tendency, it "cannot establish anything more than relevance": Hughes at [64]. By way of contrast, a tendency expressed at a level of particularity will be more likely to be significant: Hughes at [64]. 9. The tendency which the Crown alleges in this case is specific, encompassing the types of violence which Elisha Locke would give evidence that she saw Mr Walker direct towards Ms Locke in 2000. While her evidence thus concerns events which are considerably remote in time, I am satisfied that, nevertheless, they are of significant probative value, in resolving what lies in issue as to the cause of Ms Locke's injuries. 10. That Mr Walker inflicted such violence on Ms Locke in Elisha Locke's presence, violence of a type which others much later also saw him inflict, is what gives her evidence significance. The other evidence on which the Crown relies to establish the claimed tendency, to which no objection is taken, will establish that other witnesses saw such violence from 2009 onwards. 11. Elisha Locke's evidence would establish that such acts had occurred much earlier, in 2000, quite early in this domestic relationship. That makes her evidence "influential in the context of fact-finding": IMM at [46]. 12. Contrary to the case advanced for Mr Walker, whether or not the tendency already existed in 2000, is not to the point. In the case of any tendency evidence, conduct which is persisted in to the point where a tendency comes into existence, begins at some earlier point in time. The evidence does not establish when that was, in this case. 13. While Elisha Locke's evidence, alone, would not provide a reliable basis for the conclusion that Mr Walker had the tendency alleged, at the time when Ms Locke died, when considered together with the other tendency evidence to which no objection is taken, it supports the finding that there was such conduct, which Mr Walker persisted with, up until the time of Ms Locke's death in 2017. 14. Thus it is that Elisha Locke's evidence does make it more likely that the elements of the offence charged will be found proven, when Ms Locke's injuries and their likely causes are considered, in light of the evidence which she would give, about having observed acts which are consistent with the tendency, as long ago as 2000, during a relationship which continued over the course of many years, despite ongoing violence. 15. In the result, it must be concluded that the direct evidence which Elisha Locke would give about what she saw Mr Walker do to her mother in 2000, does have significant probative value. This is a case of the kind discussed in Hughes at [41], where the disputed evidence has a high degree of probative value, because, when it is considered together with the other evidence, it strongly supports proof of the alleged tendency, and that tendency strongly supports the proof of facts which make up the offence with which Mr Walker is charged. Does the probative value of Elisha Locke's evidence substantially outweigh any prejudicial effect it may have on Mr Walker? 1. There is no doubt that tendency evidence is prejudicial to an accused. As explained in Hughes at [17]: "17 The reception of tendency evidence in a criminal trial may occasion prejudice in a number of ways. The jury may fail to allow that a person who has a tendency to have a particular state of mind, or to act in a particular way, may not have had that state of mind, or may not have acted in that way, on the occasion in issue. Or the jury may underestimate the number of persons who share the tendency to have that state of mind or to act in that way. In either case the tendency evidence may be given disproportionate weight. In addition to the risks arising from tendency reasoning, there is the risk that the assessment of whether the prosecution has discharged its onus may be clouded by the jury's emotional response to the tendency evidence. And prejudice may be occasioned by requiring an accused to answer a raft of uncharged conduct stretching back, perhaps, over many years." 1. The prejudicial effect which was submitted to result from the receipt of Elisha Locke's evidence was argued to be that: "Domestic violence is understandably a problem in the community that is currently regarded with great abhorrence. The instinct to punish someone who punched his wife repeatedly to the head, in front of her child, will be strong, and completely disproportionate to any rational process of reasoning the jury could adopt as to the accused having a tendency to be violent towards his wife. This very remote allegation is not evidence that should be found to meet the demanding test imposed by s101." 1. In oral submissions it was argued that there were multiple reasons why someone might stay with a person despite violence being inflicted upon them and that it was completely unbalanced to introduce very graphic evidence of a remotely prior assault, to explain tendency established by other evidence of assaults between 2009 and 2016. 2. As discussed in R v SK; SK v R [2011] NSWCCA 292 at [34]: "34 A jury's antipathy towards an accused, assuming that the accused is guilty and failing to properly consider a defence are all potential by-products of tendency evidence. In that sense, the nature of tendency evidence is inherently prejudicial, hence the need for strong directions, including the requirement that the tendency evidence be proved beyond reasonable doubt. It is not however, prejudicial simply because it tends to prove the commission of the offences. That constitutes, subject to proper directions, appropriate use of the evidence, not its misuse." 1. Elisha Locke would give evidence about what may properly be described to be domestic violence directed at a mother in front of her child, rather than sexual assault of the kind which arose for consideration in SK. Such assault, is however, also undoubtedly conduct regarded with great abhorrence by the community. That tendency evidence concerns such conduct does not of itself properly lead to the conclusion that it cannot be received, because its probative value would not substantially outweigh its prejudicial effect. 2. The difference between the evidence which Elisha Locke and neighbours would give, is that only she can give evidence of what she observed while living with Mr Walker and Ms Locke in their home and that her evidence attests to violence which left no physical marks. Given Mr Walker's various accounts, by all of which he claimed that he had not caused any of the injuries, which occurred while they were in their home alone, her evidence is highly probative, even though there is a gap in relation to what occurred between 2000 and 2009, only partially filled by the evidence of Mr Walker's mother, who saw pushing in that time. 3. In resolving what lies in issue account must also be taken of the directions which will be given, as to the use which the jury may make of the tendency evidence: DAO v The Queen (2011) 81 NSWLR 568; [2011] NSWCCA 63 at [171]. Those directions are what will guard against any instinct to punish Mr Walker for the acts the subject of Elisha Locke's tendency evidence. 4. The tenor of such a direction is, as the Criminal Trial Bench Book explains at [4-225], that if the jury concludes beyond reasonable doubt that one or more of the acts relied on occurred, the jury must then determine, from that act or acts, whether it can conclude beyond reasonable doubt that Mr Walker had the alleged tendency that the Crown alleges. It is only if that conclusion is reached, that the acts and tendency so found proven, may be used, together with the other evidence relied on, giving the tendency evidence the weight the jury considers it deserves, in determining whether Mr Walker murdered Ms Locke. 5. When that is taken into account, I am satisfied that it must be concluded that the probative value of Elisha Locke's evidence substantially outweighs any prejudicial effect of its receipt, notwithstanding that it concerns events which occurred in 2000 and that most of the other tendency evidence relates to conduct after 2009. 6. Like the other tendency evidence to which no objection is taken, Elisha Locke's evidence will undoubtedly have a prejudicial effect, but I am not satisfied that its prejudicial effect, even when considered together with the prejudicial effect of the tendency and other evidence to which no objection is taken and that which will be received over objection, is such that it can properly be concluded that the prejudicial effect of her evidence substantially outweighs its probative value. 7. In the result, the objection to the tendency evidence that Elisha Locke would give cannot be upheld. Ms Large Does her evidence have significant probative value? 1. The tendency evidence which Ms Large would give is that the only incident of physical aggression that she saw was when she was in their apartment and saw "a cuppa thrown on Linda". She could not remember when that occurred. 2. The circumstances which the Crown relies on to establish Mr Walker's tendency to act violently toward Ms Locke, includes Mr Walker throwing objects at her. There is no objection to Ms Large's evidence on the basis of relevance, she being able to give direct evidence about the "cuppa" thrown at Ms Locke. 3. Whether this evidence has significant probative value depends on the extent to which it makes the elements of the offence charged more likely, that requiring a comparison between the tendency and the facts in issue, which includes whether Mr Walker caused Ms Locke's injuries, excluding as a reasonable possibility that they occurred accidentally. 4. For Mr Walker it was contended that Ms Large's evidence could not have significant probative value, given the seriousness of Mr Walker's alleged assault on 27 April 2015, even though her evidence was, it was accepted, admissible as relationship evidence. Still it was argued, her evidence should be excluded under s 137, evidencing only as it did bad character and demeaning conduct, rather than anything rationally capable of helping to establish that the Crown has proven that violence, rather than accident, resulted in Ms Locke's death on 27 April. 5. There is no question that Ms Large's evidence, being admissible, has probative value, as discussed in IMM at [40]. 6. Unlike the conclusions I have reached in relation to Elisha Locke's evidence, however, I am not satisfied that Ms Large's evidence about the thrown "cuppa", even when considered together with the other evidence, has significant probative value. That is because I do not consider that the evidence would be 'influential in the context of fact-finding', given what is in issue as to whether the particular injuries Ms Locke suffered in April 2017, were the result of Mr Walker's deliberate acts, or accident. 7. In the result, Ms Large's evidence is not admissible as tendency evidence Should the relationship evidence be excluded under s 137? 1. Ms Large is one of the neighbours who could give evidence of the volatile relationship which they observed between Mr Walker and Ms Locke. There is no issue that it is thus admissible as relationship evidence. The only act of violence which she observed was the "cuppa" which Mr Walker threw. As was accepted for Mr Walker, that evidence is relevant because it sheds light on the nature of the relationship, as discussed in Wilson v The Queen (1970) 123 CLR 334. 2. As explained in R v Frawley (1993) 69 A Crim R 208 at 220 evidence of frequent and serious quarrelling between a couple, which goes beyond ordinary difficulties and disagreements of the kind which Mr Walker told police he and Ms Locke had, is relevant. That is why Ms Large's evidence is relevant. 3. I am not satisfied that Ms Large's evidence should be excluded under s 137. 4. To exclude her evidence would require the conclusion that its probative value is outweighed by the danger of unfair prejudice to Mr Walker. 5. Ms Large's evidence is undoubtedly prejudicial, evidencing as it does Mr Walker's violent and demeaning conduct towards Ms Locke. Her evidence helps put into context the account which he gave police. That its probative value is outweighed by the danger of unfair prejudice to Mr Walker is not, however, apparent. That Mrs Large can be cross examined about what she heard and saw, is relevant to this conclusion. 6. In the result, that receipt of her evidence should be excluded under s 137, cannot be accepted. ********** Amendments 21 August 2017 - Publication restriction lifted - trial concluded DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 August 2017